Lippman, Morrison & Co. v. Warren

94 Mo. App. 486 | Mo. Ct. App. | 1902

SMITH, P. J.

This is an action based upon the provisions of section 3221, Revised Statutes 1899. The petition alleged that the. defendant, Warren, was sheriff of Jasper county, and had in his possession an execution in favor of plaintiffs against the interpleader herein, and on which he had made the money therein specified, but did not have it before the court, nor did he pay it over according to law.

The answer of the defendant admitted the truth of the allegations of the plaintiffs’ petition, and then alleged that the execution defendant was a resident of Jasper county, a housekeeper and head of a family, and that she had given him written notice that she elected to take the said sum of money in his hands as exempt property in lieu of that mentioned in the first and second subdivisions of section 3159, Revised Statutes 1899 and that she claimed said money as exempt, etc. And further that the defendant had refused to pay said sum to either plaintiffs or the execution defendant, lest he be required to pay the same a second time, and that he was at all times ready and willing to pay it over to the party entitled thereto; that he had no interest in it, and offered to' bring it into court, etc. The prayer was that the court require the execution defendant to interplead in the cause and submit her rights to its judgment so that defendant might be protected in the payment, etc.

And thereupon a rule was awarded to the execution defendant requiring her to appear and interplead for the fund, which rule was duly served and thereafter she appeared and filed an interplea in the cause. After she had filed her interplea, a change of venue of the cause was, on her application, granted to the county of Vernon, where the plaintiffs filed a motion for judgment on the pleadings to the effect that the money on deposit be paid over to them. Afterwards, pending the plaintiffs’ motion for judgment, the court, permitted the interpleader to withdraw her interplea and to be discharged under the rule requiring her to interplead, and thereafter the court sustained the plaintiffs’ motion, ordering the fund in the custody of the clerk to be paid over to the plaintiffs.

After this order had been made, defendant Warren reappeared in the cause and filed a motion to set aside the same, which was sustained. The defendant thereupon filed an amended answer, pleading substantially the same facts as were pleaded in his first answer. In this latter the defendant prayed that the interpleader be again required to interplead and establish her claim, if any she had, to the fund in the custody of the court, etc. The plaintiffs filed a motion to set aside the order of the court vacating its decree and directing the payment of the fund to them, which was denied by the court.

When the defendant had brought the fund in his hands into court and obtained as he did an order on the execution defendant to appear and interplead for it, he from thenceforth had no concern as to the result of the controversy between her and- the plaintiffs in respect to it. The action as between the plaintiffs and himself terminated at that point. The order of the court requiring the execution defendant to interplead was all the decree that he could have in the case. Though a defendant in the action of the plaintiffs against him, yet by his answer and the order of the court requiring the execution defendant to appear and assert her claim to the fund he had paid into court, he was out of court, and in effect discharged from the cause, leaving the controversy between the plaintiffs and the interpleader to be carried on by them without his presence. Duke v. Duke, 93 Mo. App. 244; Glassner v. Weisberg, 43 Mo. App. 214; State v. Kumpff, 62 Mo. App. 332; Arn v. Arn, 81 Mo.App. 133; Price v. Mining Co., 83 Mo. App. 470.

The defendant, having succeeded in bringing the two adverse claimants into court face to face where they could assert their respective claims to the fund, had no further right thereafter to intermeddle or interfere in the contest between them. When the venue of the interpleader suit was changed to Vernon county, it did not have the effect to carry along with it the controversy between plaintiffs and himself, which had previously passed into the domain of adjudicated matter. His appearance and action taken in the latter court in the interpleader suit was but that of an interloper. He had no more right to file a motion to set aside the decree, which plaintiffs had obtained against the interpleader, than any other stranger would have-had. This decree was not against him personally, nor was he-in any way interested in the fund or the disposition therein made of it.

No one interested in any way in the fund disposed of by the decree had made any complaint in respect thereto, and it is impossible to discover by what right the defendant in the original suit had to attack the plaintiffs’ decree, to which he was not a party, nor had he any right or concern therein.

The action of the court in sustaining the motion of the defendant to set aside the decree in favor of the plaintiffs, was, we think, erroneous, and accordingly that order will be reversed with directions to reinstate the decree.

All concur.